EXHIBIT 5
STOCK PURCHASE AND SALE AGREEMENT
THIS STOCK PURCHASE AND SALE AGREEMENT (this "Agreement") is executed as of
March 1, 2001, by and between Samstock/SIT, L.L.C., a Delaware limited liability
company ("Purchaser"), Xxxxx X. Xxxxxxxxx ("SZR") and Xxx X. Xxxxxxxx ("RFD")
(SZR and RFD, individually "Seller", or collectively, "Sellers"). Capitalized
terms used and not defined herein shall have the meanings ascribed to them in
the Limited Liability Company Agreement dated as of November 19, 1999, for
EGI-DM Investments, L.L.C., a Delaware limited liability company (the
"Company").
WHEREAS, SZR and RFD each own 25.5% (or collectively, 51%) of the total of
all Percentage Interests in the Company held by all Company Members;
WHEREAS, Purchaser desires to purchase from Sellers, and Sellers desires to
sell to Purchaser, their entire Membership Interests in the Company, including
without limitation, their entire Percentage Interest (the "Seller Interests");
NOW, THEREFORE, in consideration of the premises and covenants set forth
herein and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Sale and Purchase of Seller Interests. Each of the Sellers hereby
sells, transfers, assigns and delivers to Purchaser, and Purchaser hereby
purchases from each Seller, the Seller Interests held by such Seller, free and
clear of all liens, claims and other encumbrances other than those created by
Purchaser or those existing by virtue of law, including without limitation, the
Securities Act of 1933, as amended (the "Securities Act") and any applicable
state securities law (collectively, "Liens").
2. Purchase Price. In consideration for the Seller Interests, Purchaser
hereby agrees to pay to each of the Sellers in immediately available funds on
the date hereof, a purchase price of $1.00 in the aggregate (the "Purchase
Price").
3. Representations of Purchaser.
(a) Investment Intent/Accredited Investor. Purchaser is acquiring the
Seller Interests for investment for its own account and not with the view
to selling, distributing or transferring the Seller Interests, and
Purchaser shall not sell such securities unless such transaction is
registered under the Securities Act or is exempt from the registration
requirements of the Securities Act or applicable state securities laws.
Purchaser is an "accredited investor" within the meaning of Rule 501 of the
Securities Act. Purchaser has obtained such information as is necessary to
make a fully informed investment decision with respect to the Seller
Interests. Purchaser has the business and financial experience to evaluate
the merits and risks of an Investment in the Seller Interests and is able
to bear the economic risk of an investment in the Seller Interests.
Purchaser has the business and financial experience to evaluate the merits
and risks of an Investment in the
Seller Interests and is able to bear the economic risk of an investment in
the Seller Interests for an indefinite period of time.
(b) Authorization. Purchaser has the power and authority to execute
and deliver this Agreement, and all other documents, instruments and other
writings, if any, to be executed and/or delivered by or on behalf of
Purchaser in connection with the transactions contemplated hereby, to
perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement have been duly authorized by Purchaser and no other
proceedings on the part of Purchaser are necessary to authorize the
execution, delivery and performance of this Agreement or the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Purchaser and, assuming due authorization, execution and delivery by
Sellers, constitutes a legal, valid and binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms.
4. Representations of Each Seller. Each Seller represents, warrants and
covenants with respect to itself and its own Sellers Interests, and not with
respect to the other Seller or the other Seller's Seller Interests, as follows:
(a) The Seller Interests. Upon payment of the Purchase Price at the
closing of this transaction: (i) Purchaser will acquire good and marketable
title to the Seller Interests, free and clear of all Liens.
(b) Authorization. Seller has the legal status to execute and deliver
this Agreement as binding obligation of Seller. This Agreement has been
duly executed and delivered by Seller and, assuming due authorization,
execution and delivery by the Purchaser, constitutes a legal, valid and
binding obligation of Seller enforceable against Seller in accordance with
its terms.
5. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, without giving effect to
conflict of law principles. If any provision of this Agreement is held invalid,
the remainder of this Agreement shall not be affected thereby. This Agreement
sets forth the entire agreement of the parties, with respect to the subject
matter hereof, and no waivers, modifications or amendments shall be effective
unless the same are in writing signed by the party to be charged. This Agreement
may be executed in counterparts, each of which when so executed shall be deemed
by an original, but all of which taken together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties have executed and delivered this Stock
Purchase and Sale Agreement as of the date first written above.
SAMSTOCK/SIT, L.L.C.
/s/ Xxxxxx Xxxxxxx
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By: Xxxxxx Xxxxxxx
Its: Treasurer
XXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
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XXX X. XXXXXXXX
/s/ Xxx X. Xxxxxxxx
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